Sanchez v The University of Bristol

What this case tells us about the use of #LawFare in the battle against the assumed supremacy of gender identity ideology; its limitations, its consequences and its impact beyond the court room.

On April 21st I read the judgment in Sanchez v The University of Bristol. This case involved the Claimant, Raquel Rosario Sanchez, who brought an action against the Defendant, The University of Bristol, claiming for damages in contract, negligence and under the Equality Act 2010 on allegations that the Defendant failed to protect her against the actions of members or supporters of the ‘transgender community’ at the University. The Claimant did not succeed. As someone who is a staunch advocate of ‘LawFare’ I felt I had a duty to understand what happened, to explain it as simply as I could, and discuss the ramifications of this judgment.

The background

The Claimant enrolled in a PhD course at the University, in its Centre For Gender and Violence Research, alongside a student known only as ‘AA’ who is transgender. In December 2017 the Claimant agreed to chair an event for WPUK called ‘A Woman’s Place is Speaking Out’ scheduled for 8th February 2018. This event came to the attention of ‘AA’ who organised an open letter in protest, asserting that it would involve “the violent denial of trans experience and identity” and “the deliberate propagation of fear and hate based narratives”.

The Claimant objected, the Defendant issued a statement to say that the WPUK event was nothing to do with them. Unpleasant social media comments proliferated, including a post from ‘AA’ saying I’m gonna eat pizza in bed. And with every bite my solid mass of queerness will grow denser … all the better to punch them terfs with. The Judge commented at para 44 that such threats cross the line into ‘deplorable and abhorrent conduct’.

The WPUK meeting took place without incident but the Claimant made a formal complaint about the open letter and asked the Defendant to investigate. The Students Union - for whom the Defendant had no responsibility - then passed a motion to ban any ‘Terf’ events on campus, which was later overturned by the Union’s Trustees. The unpleasantness on social media continued and ‘AA’ made a complaint about the Claimant, apparently as ‘tit for tat’.

The Defendant issued a statement declaring its support for freedom of speech and ‘regret’ at the manner in which some people chose to exercise that freedom. They did not consult the Claimant and clearly thought that this dealt with her complaint.

The Claimant was unhappy and accused the Defendant of not taking seriously the threats of violence or the motion passed by the Students Union, apparently unaware that the Union was an ‘autonomous legal body’ and not under the control of the Defendants.

The Defendant then instigated disciplinary proceedings against ‘AA’ for, inter alia, bullying and threatening behaviour and failure to respect the freedom of speech of others. ‘AA’ resisted, claiming ‘no case to answer’. There were delays in organising hearings, it seems that ‘AA’ was continually leaking information about the proposed hearings and by March 2019 ‘AA’s lawyers were expressing concerns about the delay and the impact on ‘AA’s mental health. Finally in June the Defendant decided to terminate the proceedings out of concern for ‘AA’s mental health.

The Judge noted ‘AA’s ‘petulant’ response to this in a social media post

“The face (& nipples) of someone deciding what new hobbies to pursue, now that the University of Bristol have dropped their transphobic joke of a disciplinary case. So many options … Eat your hearts out WPUK [giving the finger emojis]”

The Claimant was understandably very unhappy. The Judge notes at para 94 it took the Defendant an ‘excessively long time’ to respond to her concerns, which the Defendant had found were genuine. The Defendant offered her a review of the relevant policy, procedure and regulations, a refund of the course fee if the Claimant withdrew and compensation of £5,000 (the upper limit normally recommended by the Office of the Independent Adjudicator for Higher Education). The Claimant did not accept.

The matter was further complicated by the Claimant finding her studies seriously impacted by the failure to deal with ‘AA’s threatening behaviour in a timely manner. The Defendant could allow a ‘suspension’ (i.e. a pause button is pressed) or an extension of time. The Judge did not think either option was offered as a ‘punishment’ for the Claimant, as she asserted, but it was clear that either option could have serious implications for an overseas student such as the Claimant, in terms of continued funding or visa requirements.

The Judge had ‘considerable sympathy’ (para 113) for the Claimant “in her capacity as victim who perceived the accused as being given more protection and as having rights which somehow trumped her own” but concluded that she was ‘unrealistic’ in her expectations and wrong in her interpretations of some of the Defendant’s actions. But the Defendant had to take some of the blame for this in its failure to keep the Claimant properly informed and guided about the complaints process. The Defendant could have done a much better job of progressing the complaint, but the Judge found no evidence of malice towards the Claimant.

Nor did the Defendant have a ‘duty of care’ towards the Claimant, the Judge noting that it could not have protected the Claimant against being targeted on social media, as it had no control over such postings. Her main contention was that the Defendant owed her a duty to protect her from other students; there was no case law to support this ‘novel proposition’. The Judge concluded at para 156 that

The University does not purport to be (and cannot be) in loco parentis factually or legally in respect of any one of its adult students and, of course, the Defendant was not ‘in control of’ AA in the Dorset Yacht sense and insofar as it was under any arguable duty to protect the Claimant from AA, it complied with that duty by undertaking the disciplinary proceedings. In my judgment, applying Bradford-Smart, no actionable breach of duty has been identified.

The Judge found that the harm done to the Claimant was by the open letter, ‘AA’s conduct and the student union motion for which the Defendant ‘had no responsibility and which the Defendant was not in a position to prevent in the first place’.

The positives

The judgment started with an affirmation of the importance of free expression. Although at para 15 it is grating to see that sex is apparently ‘assigned’ at birth (a reminder that we still have a way to go in unpicking the reach of this ideology) the judgment sets out fairly the concerns of the ‘feminist’ camp and recognises clearly that those who are ‘outraged’ by women’s concerns go as far as threatening violence.

Para 130 is a helpful reminder of what no one should forget, but many apparently have; freedom of speech does not encompass the right to threaten others

The Claimant was perceived by AA and others as harbouring anti Transgender views which they vociferously protested against (which they are entitled to do) and sought to close down by threats and intimidation (which they are not entitled to do).

It is also very clear what the Judge thought of ‘AA’s behaviour - ‘abhorrent and deplorable’ - which hopefully sends a very clear message to other Universities who may have hitherto given such behaviour a ‘free pass’.

I think that had this case been bought earlier, it is unlikely that ‘AA’ would have been criticised in the way this Judge did. A big part of why ‘AA’ felt so empowered to act thuggishly can be found in the historic slow response of institutions to violence and intimidation offered by the ‘transgender community’. This has been challenged by the Reindorf Report into the failure of Essex University to protect Professors Phoenix and Freedman, and widespread condemnation of Sussex University’s failure to protect Professor Stock. The Claimant is part of that necessary fight back to restore rationality and the rule of law to our public discourse and she ought to be proud of this. Hopefully other Universities will carefully reflect on this judgment, where the lines are drawn as to permissible freedom of speech and the manner in which they organise their disciplinary proceedings. Being a member or supporter of ‘the transgender community’ is no ‘get out of jail free card’ for behaviour which is criminal.

The negatives

This is of course, the huge expense of LawFare. The trial bundle was at least 1,500 pages, which increased with late disclosure from the Defendant. The Claimant not only has to pay her own legal fees but is now at risk of being ordered to pay the costs of the Defendants. She was able to raise a staggering £116,000 via crowdfunding but this is still short of her lawyers’ total bill of £160K and will of course fall far short of the total once the Defendant’s costs are added. I cannot ignore the huge and negative impact that legal costs have on LawFare as a viable strategy for many.

Is it worth it? I can do no better than turn to the words of the Claimant herself

Being funded by the public, this legal case belongs to all of you. But today, there is one thing that truly belongs only to me. And that is a deep sense of pride, respect, and admiration for the woman I have become over the course of these very difficult years. The risk to me is not over: I have lost my case, and I may now have to meet the University’s legal costs. To risk the loss of my academic dreams, financial ruin and reputational damage is a frightening prospect for anyone, and especially at my age. But I am glad that when the moment of truth came, I took these risks in order to do the right thing and object to injustice.

The true impact of #LawFare is felt beyond the confines of the judgment on the page. I will continue to promote it as the best and most effective way of bringing about necessary change - despite its horrific financial burdens - because what it brings to the attention of us all is not merely a legal victory or a legal defeat, but the courage of those individuals who risked a considerable amount to show that they would stand up and be counted. The Claimant joins that small and select courageous group, alongside Harry Miller and Maya Forstater (and hopefully more to come!)